For decades, Third World legal scholars have challenged the existing international legal regime, seeking to undo the structural imbalances that permeate contemporary global society. The TWAIL Movement, or Third World Approaches to International Law, has consistently worked towards producing a credible critique of international law, with the aim of redressing multiple historical biases that pervade the global order. Scholars have contributed to this movement primarily by identifying the inherently injurious nature of its procedures and structures in respect to Third World states and their peoples. Yet, despite their best efforts, historical power imbalances persist in the international legal regime as does material deprivation among Third World societies. Part of this lack of success is due to the forceful counter-challenges waged by First World states, unmoved by Third World collective plight and unwilling to surrender First World political power. It also results from TWAIL scholars’ inability to articulate a cohesive counter-vision of world society that would allow all peoples to stand as equals. Finally, the triumph of such a grand legal (and social) reformative programme necessitates a veritable rebirth of international social relations, one that has, until now, been missing.

In this Article, and in slight opposition to distinguished TWAIL scholar Bhupinder Chimni, we argue that the ‘failure’ of this redressing to occur lay not with TWAIL scholars but with the withering of the popular will needed to propel the reformative project forward. We further demonstrate that, when juxtaposed alongside the Bolivarian Revolution, a unique South American treaty known as ALBA offers TWAIL scholars their first real opportunity to actualise their reformative aspirations. While it has previously been argued that Latin American international lawyers employ international law in a unique manner, the breadth and scope of ALBA is far more significant, both for the TWAIL movement and international law reformers in general. In the Bolivarian Alliance for the Americas agreement (ALBA) we find a platform from which TWAIL might transcend its reactive nature and develop a proactive character. Building on a practical prototype that produced a participatory model of democracy and a progressive model of social relations, we argue that ALBA’s philosophy and substantive workings present the structure needed for the reinvention of international law along similarly equitable lines; from a formal regulatory regime to a substantive emancipatory paradigm, from a purely Eurocentric endeavour to one representative of the multitude of global society.

“Subsidization” by member governments occurs in the U.S. Federal system, the WTO, and the European Union. These three legal systems have responded very differently to the issues raised by subsidies, from the largely laissez-faire approach of the United States to the elaborate “state aid” rules of the EU to the intricate but weakly enforced rules of the WTO. This paper examines the three approaches asking which, if any, makes the most sense. It argues that the detailed rules of the WTO and EU are largely indefensible from an economic perspective. They fail to identify subsidization in any meaningful sense, and lack the capacity to distinguish socially constructive subsidies from those that are “protectionist” or are otherwise objectionable. The problems are likely irremediable, hinting that a laissez-faire attitude toward subsidies may be the best option.

This paper discusses the role that emerging economies could play in rendering intellectual property law and lawmaking more responsive to changing conditions. At present, neither the North nor the South is likely to challenge the accommodations made in the TRIPS Agreement. In the North, the politics of change is complex; the South largely lacks expertise. But emerging economies have the political will to improve access to the world’s intellectual output on behalf of their poorest citizens. At the same time, they have growing creative sectors and thick legal and political cultures, capable of striking new and imaginative balances between proprietary and access interests. Because the goals of these economies are best served by partnering with least-developed countries and members of civil society interested in IP issues, these nations also have an incentive to improve another type of access norms — norms of participation, fairness and transparency in international lawmaking. These nations are, in other words, in a unique position to contribute to the reforms that are the cornerstone of the global administrative law agenda.

Competing jurisdiction is a relatively new but increasingly important phenomenon in international law. The ongoing proliferation of international courts and tribunals results in a multiplication of judgments and arbitral awards, which potentially conflict with each other. The case studies examined in this working paper illustrate the methods applied by various courts and tribunals to deal with competing jurisdictions. Since any formal hierarchy or coordination between the various international courts and tribunals is lacking, only soft law methods, such as the application of comity, in particular the Solange method, appears to be a useful tool to deal with the negative effects associated with competing jurisdictions.

Human rights are invoked on many occasions. But are they more than lofty values and abstract principles?

In providing a concise but comprehensive overview of international human rights protection at the global and regional levels, this book offers an introduction to the ideas, conceptual underpinnings, and doctrine of international human rights law including the sources, legal nature, and scope of application of human rights obligations. The issues of implementation and enforceability at the domestic, regional, and universal level are explored, and the impact of the recently established Human Rights Council is assessed. The substantive guarantees covering economic, social, and cultural as well as civil and political rights based on the case law of UN treaty bodies and relevant regional courts are evaluated.

This book shows that human rights are real rights creating legal entitlements for those who are protected by them and imposing legal obligations on those bound by them. It explores the various mechanisms set up by the international community to monitor the implementation of human rights guarantees and to decide individual cases brought to the attention of human rights courts and quasi-judicial bodies at the international level. Its last part contains a detailed exploration of the meanings of human rights guarantees, such as the right to life, the prohibition of torture, non-discrimination, economic rights, and many others.

Various commentators have suggested that the current system of trade sanctions for violation of WTO obligations be replaced with financial compensation. The details of these proposals vary, but one option is to allow firms injured by violations to recover damages. This paper questions the wisdom of such proposals, and argues that the current system in which those injured by violations do not reap the benefit of sanctions – a “decoupled” sanctions regime in economic parlance – may well be superior for a number of reasons. The paper also reviews and refines the view of current WTO practice as an analogue to expectation damages in private contracts. The original version of this paper was prepared for the interdisciplinary workshop on The Calculation and Design of Trade Sanctions in WTO Dispute Resolution, at the Graduate Institute in Geneva, 2008. The revised version will appear in The Law, Economics and Politics of Retaliation in WTO Dispute Settlement, forthcoming from Cambridge University Press.

This contribution seeks to analyze and clarify the relationship between international law and Community law in the light of the most recent jurisprudence of the ECJ regarding Article 307 EC.

The main argument that will be developed is that the ECJ has recently identified a new untouchable core of fundamental European constitutional law values and principles more explicitly and more forcefully than before by interpreting the obligations arising out of Article 307 (2) EC in an extremely extensive way. It is further argued that this new untouchable core of European constitutional law values and principles is actually copied from national constitutional law, which in turn illustrates the fact that the ECJ is increasingly performing the function of a true constitutional court of Europe.

Empirical work in international law is rapidly increasing in quantity and sophistication. This trend reflects the expansion in number and importance of international organizations and courts, as well as developments in legal scholarship and the social sciences. This Handbook Chapter surveys empirical work on international tribunals, treaties and many substantive areas of law. Some of these areas, such as trade, investment and human rights, are the subject of burgeoning empirical literatures. Others, particularly private international law, have received less attention to date, but good work is beginning to emerge, as is the case with criminal law and investment law. We see the field continuing to expand and diversify in years to come, as many outstanding questions beg for analysis.

The Hague Peace Conferences of 1899 and 1907 dealt with three interlinked topics: the peaceful settlement of disputes, including by arbitration; the restriction of armaments and military budgets; the laws of war. The first two were aimed at preventing the outbreak of war, not by restricting the jus ad bellum in its substance, but by inducing states not to use their continuing war power and to limit the growth of their war machinery. The third topic was concerned with containing the brutality of war where its prevention had failed. Whereas the Conferences succeeded in codifying the laws of war, they made less progress with regard to the peaceful settlement of disputes and failed on limiting armaments. Worst of all, they could not prevent the outbreak of World War I.

This volume uses the occasion of the 100th anniversary of the Second Hague Peace Conference to follow up on the then concerns and objectives, looking at the Hague legacy through the lens of today's problems. The 27 contributions treat the most pressing recent issues of non-proliferation and disarmament, international humanitarian law and judicial dispute settlement. Three questions run like a thread through this volume: 1. In which areas have the promises of 1899 and 1907 remained unfulfilled and why? 2. In which areas has there been progress, in which other areas perhaps regression? 3. What are our prospects and how can we international lawyers help shaping a promising future in respect of the prevention and containment of war?

Whereas the "empire of law" in international relations and the age of international justice, which were envisaged in the Convention for the Pacific Settlement of International Disputes of 1899/1907, have not yet arrived on the global level, we Europeans have made considerable progress since 1945. But in the age of globalization, Europe cannot for long remain an Isle of the Blest. Together with the other peoples of the United Nations we must therefore strive toward fulfilling the promises of the UN Charter and the Universal Declaration of Human Rights - peace, justice, freedom and prosperity for everyone and all nations large and small. Only then can wars be prevented.

R. Wilde, From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers

E. Benvenisti, The Law on the Unilateral Termination of Occupation

G.H. Fox, A Return to Trusteeship? A Comment on International Territorial Administration

R. Heinsch, The International Committee of the Red Cross and the Challenges of Today's Armed Conflicts

W. Kälin, The ICRC's Compilation of the Customary Rules of Humanitarian Law

H.-J. Heintze, Terrorism and Asymmetric Conflicts: A Role for the Martens Clause?

K. Oellers-Frahm, Nowhere to Go? The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction

B. Simma, How Has Article 36 (2) of the ICJ Statute Fared?

C.J. Tams, The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction

The World Bank Policy for Projects on International Waterways: An Historical and Legal Analysis discusses the evolution and context of the Bank policy for projects on international waterways. It starts with a brief description of how the Bank faced the challenges stemming from such projects, and analyzes the different approaches deliberated by the Bank that led to the issuance of the first policy in 1956. It then examines the main features, as well as the implementation experience, of each of the policies issued in 1956, 1965, and 1985. The principles of international water law prevailing at each stage are reviewed and compared with those of the Bank policy. The book discusses in detail the notification process, the different riparians’ responses, and how objections to Bank-financed projects are handled, as well as the exceptions to the notification requirement. It also assesses how the Bank has dealt with transboundary groundwater, and the linkages of the policy with the policies on disputed areas and environmental impact assessment. The book concludes with an overview of the main findings and lessons drawn from the implementation experience.

This essay reply to Professor Michael Stokes Paulsen, "The Constitutional Power to Interpret International Law," 118 Yale L.J. 1774 (2009) argues that Paulsen’s static, formalist portrait of the foreign affairs Constitution stands in stark contrast to the dynamic realities of transnational lawmaking today.

Paulsen’s central claim, that the U.S. Constitution is the domestic means through which United States’ international legal obligations are realized and enforced, is neither controversial nor “threaten[ing to] all that the community of ‘international law’ scholars hold most dear.” His corollary claim, that the Constitution “binds” U.S. actors in a way that international law does not, simply does not reflect reality. To the contrary, as Paulsen recognizes, most international obligations undertaken by the United States become domestic law through well-accepted constitutional mechanisms and are carried out in rather unremarkable ways, with disputes about their application or interpretation being resolved on a regular basis through domestic or international dispute settlement bodies. For all Paulsen’s claims of the “fogginess” that surrounds “vague” and “elliptical” international law, U.S. participation in the international legal system operates smoothly and in ways largely indistinguishable from the application of domestic law.

Paulsen’s secondary claim, which he argues flows from the claim of constitutional superiority over international law, is that international law is not “law” at all, but rather policy. This attack on what Steven Colbert might call the “lawiness” of international law has a long pedigree. But whether international law represents “law,” “policy,” “political commitment,” “best practices,” or something else, does not answer the more interesting and salient question of whether international law alters the behavior of actors in practice and not just in theory.

Just as non-legal domestic costs alter the behavior of the President, Congress, and the Court, the “policy” costs of non-compliance with international obligations posited by Paulsen in some cases are real enough to actually change the behavior of American constitutional actors. The Bush administration’s use of torture against detainees captured as part of the post-9/11 war against terrorism is a useful illustration of how costs ultimately restrained behavior. Despite all the constitutional powers that Paulsen posits were available to the President – the power to unilaterally breach both the Geneva Conventions (“GCs”) and the Convention Against Torture (“CAT”) in whole or in part – President Bush never publicly repudiated or stated that he was breaching or suspending those obligations. To the contrary, President Bush and other officials repeatedly stated during the period 2004-2007 that the administration “does not torture,” that its programs complied with domestic and international law, and that it remained committed to compliance with the GCs and the CAT. This is a remarkable fact given that many key members of the Bush legal policy team held views of international law and the Constitution similar to Professor Paulsen’s.

However one characterizes those costs, the torture narrative explains how external costs constrained actors and altered their interest calculations. The altered calculation of interests in turn affected how the constitutional actors in the U.S. (especially, perhaps, the Supreme Court) interpreted and applied their own constitutional powers. Paulsen’s analysis concedes that these costs of non-compliance may be real; he just does not want the corresponding constraints of those costs to be called “law.” But the label is not important to identifying the binding force of international law. Recent history amply demonstrates that it is not the force of international law that is, as Paulsen argues, “largely an illusion,” rather it is the idea of any domestic constitutional order can cut itself from considerations of international law that is illusory.

Nullum crimen sine lege and related doctrines that limit extraterritorial jurisdiction and confer immunity ratione materiae are not inconvenient obstacles to be circumvented, but crucial safeguards to be respected. These doctrines respond to the reality that the international community remains beset by serious moral disagreement, both about what count as just ends and about which harsh measures those ends might justify in circumstances of high-stakes political conflict. In such a world, in which very few hands are truly clean, unilateral invocations of universal principles must be viewed skeptically, and associated exercises of power treated guardedly. Prosecutions undertaken in the name of the international community must establish a requisite social, and not merely a moral, basis for condemning acts - including acknowledged human rights violations - as crimes, and for holding their state-authorized perpetrators as subject to individual penal responsibility.

An over-assertive approach to international criminal justice, to be pursued unilaterally in domestic justice systems, is troubling because it risks undermining what is arguably most valuable about international law. International law provides a framework for accommodation among the non-like-minded, and a normative basis for mobilizing broad opposition to the self-righteous violence of the powerful (even as it licenses uses of force where there is genuinely no reasonable alternative). Penal processes aim to identify villains, consequently to exclude them as bearers of recognized authority, and thus as partners in negotiation and accommodation. Appropriate though such outcomes are in an important subset of circumstances, it is dangerous to distract from the deeper truth that peace means peace with others as they are, not as we might like for them to be. One must seek peace, not always with the gentle, but often with the ruthless. A repudiation of that truth risks setting in motion, willy-nilly, a new ruthlessness to end all ruthlessness.

The cause of compliance with international law is a domestic political decision to engage in the behavior that constitutes compliance. This article explains the importance of the interdependence between domestic politics and foreign politics in determining compliance. International legal commitments allow the formation of coalitions between those who will benefit by their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. This theory is based on established approaches to international relations in the political science literature, in particular two-level game theory associated with Robert Putnam and the “second image reversed” approach associated with Peter Gourevitch. The two extensions of this approach made in this article, (i) from international relations more broadly to international law, and (ii) from adherence to compliance, raise some questions, and bear some important fruit. These extensions help to illuminate the problem of compliance. The theory proposed here subsumes other theories of compliance and provides a highly plausible set of assumptions about the circumstances under which we may expect states to comply with international law.